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2019 DIGILAW 1696 (KAR)

Manja @ Manjunath S v. State of Karnataka

2019-07-15

H.B.PRABHAKARA SASTRY, H.T.NARENDRA PRASAD

body2019
JUDGMENT : H.B.Prabhakara Sastry, J. The appellant has preferred this appeal challenging the judgment of conviction dated 24.07.2015 and order on sentence dated 29.07.2015, passed by the learned II Addl.District & Sessions Judge, Davanagere, (hereinafter for brevity referred to as 'trial Court'), in S.C.No.150/2013, convicting him for the offence punishable under Section 302 of Indian Penal Code, 1860, (hereinafter for brevity referred to as 'IPC') and sentencing him accordingly. 2. The summary of the case of the prosecution is that the deceased Yashodamma was the wife of one Ganeshappa, who happens to be the uncle of the accused. Said Ganeshappa died about six years earlier to the death of Yashodamma. After his death, Yashodamma was residing in Harosagara Village, in her husband's house along with her two children. The accused was also residing in the said house along with Yashodamma. During that time, he developed intimacy with Yashodamma and he was having illicit relationship with her. Thereafter, the accused started to suspect the chastity of Yashodamma and he used to obstruct her from speaking with others. On 13.8.2013, in the evening, Yashodamma had been to Davanagere and returned to Harosagara village to her house at about 9.45 p.m. At that time, the accused had locked the door from inside, and he did not open the same, even though Yashodamma knocked the door several times. Thereafter, Yashodamma got opened the door with the assistance of her neighbour by name Girish. In this regard, after entering into the house, Yashodamma quarreled with the accused. Later, on the same day, in between 10.00 to 12.00 p.m., the accused committed murder of Yashodamma by throttling her neck forcibly. Hence, the police have filed charge sheet against the accused for the offence punishable under Section 302 of IPC. 3. Charges were framed against the accused for the offence punishable under Section 302 of IPC. Since the accused pleaded not guilty, in order to prove the alleged guilt against the accused, the prosecution got examined twenty-two witnesses as PW-1 to PW-22 and got marked documents from Exs.P-1 to P-22 and material objects at MO-1 to MO-5. On behalf of the accused, neither any witnesses were examined nor any documents were got marked. Since the accused pleaded not guilty, in order to prove the alleged guilt against the accused, the prosecution got examined twenty-two witnesses as PW-1 to PW-22 and got marked documents from Exs.P-1 to P-22 and material objects at MO-1 to MO-5. On behalf of the accused, neither any witnesses were examined nor any documents were got marked. After hearing both side, the trial Court by its impugned judgment of conviction dated 24.7.2015 and order on sentence dated 29.7.2015, convicted the appellant/accused for the offence punishable under Section 302 of IPC and sentenced him accordingly. It is against the said judgment of conviction and order on sentence, the appellant/accused has preferred this appeal. 4. The lower Court records were called for and the same are placed before this Court. 5. Heard the arguments from both side and perused the materials placed before this Court. 6. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. 7. Among the twenty-two witnesses examined by the prosecution, PW-1 Smt.Shakuntalamma, has stated that deceased Yashodamma was her relative, as such, she had been to her house after hearing the news about her death. At that time, in her presence, the police drew an inquest panchanama on the dead body of the deceased Yashodamma as per Ex.P-1. The witness has further stated that, after the death of husband of Yashodamma, the accused, who is the son of elder brother of the husband of deceased Yashodamma, also started living with Yashodamma. In her cross-examination from the accused side, nothing could be elicited favouring the accused. 8. Pw-2 Halesh M., a resident of the same village where the deceased was living, has stated that he knows both the deceased and the accused and the accused was living in the house of the deceased. He has also stated that inquest panchanama as per Ex.P-1 was drawn in his presence. He has further stated that since the death of Yashodamma on 13.8.2013 was in her house, the scene of offence panchanama was also drawn in her house as per Ex.P-2 and from the spot, a cell phone, a Sim card and an ear stud and one more article were seized. He has identified the scene of offence panchanama at Ex.P-2. In his cross-examination, he has not admitted as true the denial suggestions made to him. 9. He has identified the scene of offence panchanama at Ex.P-2. In his cross-examination, he has not admitted as true the denial suggestions made to him. 9. Pw-3 Girijamma, has stated that deceased was her daughter, who was married to one Sri Ganeshappa of Harosagara village. Five years after her marriage, said Ganeshappa died. Thereafter, nephew of Ganeshappa, by name Manju, started living with her daughter Yashodamma. The witness further stated that said Yashodamma had two children, a daughter aged about ten years and a son aged about eight years. She was eking out her livelihood by working as a Cook in a school in the said village. It was suggested in her cross-examination that being annoyed by an alleged rumor said to have been spread by one Sri Prashant, a known person to the deceased, she committed suicide. However, the witness did not admit the said suggestion as true. 10. Pw-4 - S.Hanumanthappa, has stated that recovery of a Saree at MO-1 was made in his presence through the accused by drawing a seizure panchanama as per Ex.P-3. He denied the suggestion that to help the complainant and his family, he has given a false evidence. 11. Pw-5 Girish, an autorickshaw driver at Harosagara village, has stated that deceased and her husband Ganeshappa were his relatives. He resides just two houses after the house of deceased Yashodamma. After the death of Ganeshappa about seven to eight years back, the accused who was the son of elder brother of deceased Ganeshappa, started living in the house of Ganeshappa while said Yashodamma was working as a Cook in Midday-meals activity of Government School in their village. The witness has further stated that, on the night of the incident, at about 9.30 p.m., Yashodamma returned to her house from Davanagere. At that time, accused though was inside his house, had bolted it from inside and did not open the door despite Yashodamma knocking the door repeatedly. Then she took the help of this witness and after calling the name of the accused loudly, the accused opened the door. With regard to the accused not opening the door immediately, the quarrel took place between Yashodamma and the accused. Thereafter, this witness returned to his house. Then she took the help of this witness and after calling the name of the accused loudly, the accused opened the door. With regard to the accused not opening the door immediately, the quarrel took place between Yashodamma and the accused. Thereafter, this witness returned to his house. On the same night at about 12.30 to 1.00 O'Clock, the accused and his elder brother Rangaswamy, came to his house and woke him up stating that Yashodamma has fallen unconscious and she is required to be shifted to the hospital. Hearing the same, this witness took out his autorickshaw and joined by CW-9 Sunandamma, who also came there at the telephone call of this witness, all of them shifted Yashodamma to Kusuguru doctor of Basavapatna. By examining the patient in the autorickshaw itself, the doctor declared her as dead. As such, these people brought her dead body and put it on the platform of the house. The witness also stated that on the next day, he saw the neck of Yashodamma and noticed that it was swollen. He came to know that it was the accused who throttled and committed her murder. In his cross-examination, the witness adhered to his original version. 12. Pw-6 Shivakumar, the younger brother of the deceased and also the complainant in this case, apart from stating about the marriage of his sister Yashodamma with Ganeshappa, has also stated that, after the death of his brother-in-law Ganeshappa, the accused started living in the house of Yashodamma since two years prior to her death and he had also established illicit relationship with her. The witness also stated that, suspecting her chastity and fidelity, accused was also assaulting his sister in their house. The children of Yashodamma were also living with them. About the incident, the witness has stated that on the date 13.8.2013, his sister Yashodamma had been to Davanagere and returned in the evening to her village Harosagara. On the same night, at 12.00 O'Clock, his Uncle Rangappa and aunt Sunandamma, informed him that said Yashodamma was unconscious. In the next day morning, at 6.00 O'Clock, these people went to Harosagara village and saw the dead body of Yashodamma laid near the front door of their house. On the same night, at 12.00 O'Clock, his Uncle Rangappa and aunt Sunandamma, informed him that said Yashodamma was unconscious. In the next day morning, at 6.00 O'Clock, these people went to Harosagara village and saw the dead body of Yashodamma laid near the front door of their house. At his enquiry with PW-5- Girish, he was told by him that on the previous night at about 9.00 p.m., when Yashodamma returned from Davanagere, accused did not open the door. Thereafter, himself went to her assistance and got the door opened. After Yashodamma entered the house, accused quarreled with her. Thereafter, in the night, at about 10.30 p.m., accused informed neighbours that Yashodamma was unconscious. Thereafter, she was shifted to a doctor at Basavapatna in his autorickshaw, who declared Yashodamma as dead. The witness further stated that when he examined the body of his sister, he noticed some marks on her neck. From that, he inferred that it was the accused who had throttled his sister and murdered her. As such, at 9.30 a.m., he went to the complainant-police and lodged a complaint as per Ex.P-4. The police prepared the FIR as per Ex.P-5. The witness also stated that, a week after he lodging the complaint, an Engineer from Public Works Department had been to his house, to whom also, he has shown the place of offence. Verifying the same, they prepared a sketch in that regard. The witness got marked the said sketch at Ex.P-6. In his cross-examination, he adhered to his original version. 13. Pw-7 Smt.Sunandamma, has stated that deceased Yashodamma, was her niece i.e., daughter of her elder sister, who was given in marriage to one Sri Ganeshappa of Harosagara village. They had two children born to them. About seven to eight years back, Ganeshappa died. Thereafter, Yashodamma continued to stay in her husband's house with her children and the accused also visiting her house. The witness further stated that, on the night of the incident at about 1.00 O'Clock, Auto Girish came to their house and informed that accused and Yashodamma had quarreled and she had fallen unconscious. Immediately, she (this witness) joined by her husband, went to the house of Yashodamma and saw that she was unconscious. These people shifted her to Kusaguru Government Hospital in the autorickshaw of Girish, where doctor declared her dead. As such, she was brought back to the house. Immediately, she (this witness) joined by her husband, went to the house of Yashodamma and saw that she was unconscious. These people shifted her to Kusaguru Government Hospital in the autorickshaw of Girish, where doctor declared her dead. As such, she was brought back to the house. The witness also stated that during the life time of Yashodamma, after the death of her husband, accused was also residing in her house. The neighbours were telling that accused had developed illicit relationship with the deceased. On the previous evening of the incident, the deceased had been to Davanagere and returned home with some late. In that connection, the accused had objected her and quarreled with her. It is thereafter, the accused has committed her murder. Nothing could be elicited in her cross-examination favouring the accused. 14. Pw-8 Halesha, in his evidence has stated that it was in his presence and in the presence of the accused, the complainant-police seized a Saree under the panchanama at Ex.P-3 from the house of deceased Yashodamma. 15. Pw-9 Harish, cousin brother of the deceased has stated that accused was residing with deceased Yashodamma in her house after the death of husband of said Yashodamma. He has also stated that there was illicit relationship between the accused and the deceased. 16. Pw-10 Manjappa, a resident near the house of the deceased, has stated that the deceased Yashodamma was residing at a distance of 30 ft. from his house. After the death of her husband, she joined by her children, was residing in the said house. Further he has stated that he does not know the reason for the death of the deceased. He was treated as hostile and was permitted to be cross-examined by the prosecution. In his cross-examination, he admitted a suggestion as true that accused was living in the house of Yashodamma and was also sleeping there. He was not cross-examined from the accused side. 17. Pw-11 Thippesh has stated that, he knows both accused and the deceased. After the death of her husband, deceased Yashodamma was residing along with her children and the accused in Harosagara village. Though in relationship, the accused was the son of the deceased, but, both of them had illicit relationship between them. 17. Pw-11 Thippesh has stated that, he knows both accused and the deceased. After the death of her husband, deceased Yashodamma was residing along with her children and the accused in Harosagara village. Though in relationship, the accused was the son of the deceased, but, both of them had illicit relationship between them. About the incident, the witness has stated that on the date of the incident, Yashodamma returned to her village in the night at about 9.00 or 9.30 p.m. At that time, accused and her children were there in the house. Despite Yashodamma asking the accused to open the door, he did not open the door. As such, Girish went there and got the door opened. After Yashodamma entered the house, a quarrel took place between the accused and the deceased. Thereafter, this witness and Girish went to their home. In the midnight at about 12.00 O'Clock, at the noise of the people in front of the house of Yashodamma, he went there and noticed that she was taken to hospital. Since she was declared dead, her dead body was brought back to her house. He has stated that he does not know who has killed Yashodamma. 18. Pw-12 Smt.Kavita, the sister-in-law of the accused, has stated that deceased is her junior mother-in- law and accused is brother-in-law. After the death of her husband, Yashodamma was residing in Harosagara village. She stated that she does not know what relation the accused had with the deceased. She does not even know whether the accused was visiting the house of Yashodamma. About the incident, the witness has stated that, on that night at about 12.00 O'Clock, Yashodamma was taken to hospital by her husband (husband of this witness) and Girish. Since the doctor declared her dead, her body was brought back and laid in front of her house. The witness has identified the dead body of the deceased in the photographs at Exs.P-8 to P-10. She has stated that a panchanama was also drawn as per Ex.P-2. Since she did not support the case of the prosecution as expected, she was treated as hostile. In her cross-examination, the prosecution could not get any favourable statement in its favour. However, she admitted a suggestion as true that, after the death of Ganeshappa, the husband of Yashodamma, the accused was visiting their house and staying there. Since she did not support the case of the prosecution as expected, she was treated as hostile. In her cross-examination, the prosecution could not get any favourable statement in its favour. However, she admitted a suggestion as true that, after the death of Ganeshappa, the husband of Yashodamma, the accused was visiting their house and staying there. However, in her cross-examination from the accused side, she admitted one more suggestion that on the night of death of Yashodamma, herself, accused and all other members of the family were sleeping in their house and after hearing the weeping noise, they came out from their house. 19. Pw-13 Dr.Deepamani S., the Medical Officer at Chiradoni Primary Health Centre, in her evidence has stated that on 14.8.2013, at the request of complainant police, she visited Harasogara village and conducted the post mortem examination on the dead body of Smt.Yellamma @ Yashodamma between 3.30 to 5.30 p.m. After giving a detailed account of the injuries found on the body and other observations made by her during autopsy, the doctor has opined that, according to her, the cause of death was asphyxia produced by throttling with occlussion of corotied arteries, with which inturn causes brain stem death respiratory suppression and failure resulting in asphyxial death. Stating that she has issued a post mortem report in that regard, she has marked the same at Ex.P-12. She has further stated that, by post mortem examination of the dead body, she noticed that deceased might have been murdered by throttling. In her cross-examination, she denied a suggestion that the death of Yashodamma was suicide due to hanging. 20. Pw-14 A.V.Basavaraj, stated that deceased is his aunt and accused is his cousin. The accused though was working outside, but, was staying in the house of said Yashodamma. They were very intimate. However, the people in the village were talking that they had illicit relationship between them. The witness has further stated that on 13.8.2013, at about 9.30 p.m., when himself and his friends were on the side of Harosagara Basavapatna road and were talking, they saw Yashodamma coming in a bus to Harosagara village and going to her house. The accused who was inside her house did not open the door, due to which, Yashodamma went to the house of Girish and through him, got the door opened. The accused who was inside her house did not open the door, due to which, Yashodamma went to the house of Girish and through him, got the door opened. On the same night, at about 11.30 p.m., the accused and his brother Rangaswamy came to their house and stating that Yashodamma had fallen unconscious, got her shifted to hospital in their autorickshaw. The doctor in Basavapatna declared Yashodamma as dead. The witness also stated that he noticed a red colour mark of injury near her neck. He adhered to his original version even in his cross-examination. 21. Pw-15 Halesh @ Adiveppa, has stated that he knows the deceased and he had telephone contact with her. 22. Pw-16 Ajay, though stated that the accused and deceased were from his village and they were related to each other, but, has expressed his ignorance about the details of the incident. Even after treating him as hostile, the prosecution could not get any support from him, except eliciting from him that accused was staying in the house of Yashodamma. 23. Pw-17 Dr.Chennakeshava Rao, the Medical Officer at Channagiri Government Hospital, has stated that on 14.8.2013, at 9.30 p.m., the complainant-police produced before him the accused for his medical examination. By examining the accused, he noticed an abrasion over the right cheek, measuring about 1/2 x 1/2 cm. and an abrasion over the left cheek, measuring about 1/2 x 1/2 cm., which were simple injuries in nature. Recording the same, he has issued a wound certificate, which he has identified at Ex.P-13. He has further stated that, when a person attempts to throttle another person by making that other person fall on the ground, in such a situation, as a resistance, if the victim scraps the cheek of the culprit, then, such kind of injuries are possible to be caused. 24. Pw-18 - Anand Naik, Panchayath Development Officer, has stated that, at the relevant point of time, Harosagara village was coming within the limits of his panchayath. At the request of the police, he has issued a Revenue extract with respect to the house where the deceased Yashodamma was residing. The witness has identified the said document at Ex.P-14. 25. Pw-19 Manjunath Pandit, has stated that, while working as Police Sub-Inspector of complainant police station, on 14.8.2013, at about 10.00 a.m., complainant Shivakumar appeared before him and lodged a written complaint as per Ex.P-4. The witness has identified the said document at Ex.P-14. 25. Pw-19 Manjunath Pandit, has stated that, while working as Police Sub-Inspector of complainant police station, on 14.8.2013, at about 10.00 a.m., complainant Shivakumar appeared before him and lodged a written complaint as per Ex.P-4. He registered the same in their station Crime No.126/2013 and prepared a FIR as per Ex.P-5 and submitted it to the Court. Thereafter, he handed over further investigation to his Circle Police Inspector. Thereafter, as per the instruction of his Circle Police Inspector, on the same day, at about 3.45 p.m., he apprehended the accused in Nelogal village and produced him before the Circle Police Inspector as per his report at Ex.P-15. 26. Pw-20 Dr.Basavanagouda R. Kusagur, has stated that on 14.8.2013, in the midnight at 12.45 p.m., when he was in the house, a lady was brought in a autorickshaw by one Sri Rangaswamy. He examined the said lady who was in the autorickshaw and noticed that she was dead. 27. Pw-21 Prashant, has stated that he knows the deceased and he was calling her now and then and also was sending messages to her cell phone, because of that, he was being suspected. 28. Pw-22 S.C.Patil, the Investigating Officer in this case, has stated about he conducting the investigation in this matter, in which process, he visited the house of the deceased on 14.8.2013 and drew an inquest panchanama as per Ex.P-1. He also recorded the statements of some of the witnesses, including PW-3 and PW-5. He sent the dead body for its post mortem examination and drew scene of offence panchanama as per Ex.P-2. He also seized two cell phones, one ear stud and a pani from the scene of offence. He prepared a sketch of the spot as per Ex.P-16. He has also stated that the accused was produced before him by PW-19. He interrogated the accused and recorded his voluntary statement as per Ex.P-17. Based on the voluntary statement made by the accused, he, joined by the panchas, went to the house of the deceased and seized a Saree produced by the accused by drawing seizure panchanama as per Ex.P-3. The witness has identified the said Saree at MO-1 stating that it was with the same Saree, accused had attempted to hang the deceased. Based on the voluntary statement made by the accused, he, joined by the panchas, went to the house of the deceased and seized a Saree produced by the accused by drawing seizure panchanama as per Ex.P-3. The witness has identified the said Saree at MO-1 stating that it was with the same Saree, accused had attempted to hang the deceased. He has also stated that his staff who were deputed for post mortem duty, produced the clothes found on the dead body along with their report as per Ex.P-19. He also stated that he got the accused examined by the doctor and then recorded the statements of some more witnesses in the matter. He further stated that, he collected the call details of the Sim card pertaining to the deceased Yashodamma. During the course of investigation, he also collected the Revenue extract of the house of the deceased and also got prepared a sketch from the Public Works Department authorities. After collecting the post mortem examination report and the wound certificate of the injured and completing the investigation, filed charge sheet against the accused. 29. In the light of the arguments addressed before the Court and the evidence of the witnesses as narrated above, an admitted fact remains that Yashodamma was a resident of Harosagara village, whose husband by name Ganeshappa was died about five years after her marriage with him. After the death of her husband, she started living with her two children, among whom, the elder one was a daughter, aged about 10 years and younger was a son, aged about eight years, in her house in the same village. Accused by relation is the son of her brother-in-law i.e., the accused is the son of elder brother of her husband, whose house was adjacent to the house of the deceased. It is also not in dispute that Yashodamma died an unnatural death on the night of 13.8.2013, between 12.00 to 1.00 in the midnight at her house at Harosagara village. It is in the background of these undisputed facts, the case of the prosecution is to be looked into. 30. The first point that would be arising for analysis is about the nature of the death of Yashodamma. According to the prosecution, it is culpable homicide amounting to murder. The defence is that it was a suicide. It is in the background of these undisputed facts, the case of the prosecution is to be looked into. 30. The first point that would be arising for analysis is about the nature of the death of Yashodamma. According to the prosecution, it is culpable homicide amounting to murder. The defence is that it was a suicide. It is in that regard, though many of the witnesses, including the complainant and other family members of the deceased, have stated that it was a murder, but, it is only their opinion or what they claim to have heard from other people. The evidence regarding the nature of death can be found in the evidence of PW-1 and PW-2, who are panchas to the inquest panchanama at Ex.P-1. Both of them have stated that inquest panchanama was drawn in the house of Yashodamma on her dead body on 13.8.2013 as per Ex.P-1. Among these two witnesses, PW-1 stated that he came to know that accused has committed the murder of Yashodamma by throttling her. The inquest panchanama also shows that panchas have opined that the death of Yashodamma was a murder by throttling. The said evidence of PW-1 about the nature of death of Yashodamma and the contents of inquest panchanama at Ex.P-1 was not specifically denied in the cross-examination of PW-1 or PW-2. However, by mere evidence of PW-1 and PW-2 itself, it cannot be concluded that death of Yashodamma was homicidal or a murder. 31. The evidence of PW-5 gives some more details about the death of the deceased. The said witness has stated that, on the next day morning, when he saw the dead body, he noticed swelling on the neck of Yashodamma. Apart from him, PW-14, who also claims to have seen the dead body, has stated that deceased had sustained a red colour injury near her neck and that he had heard accused telling before the villagers that he had throttled Yashodamma and caused her death. The said evidence of PW-5 and PW-14 also does not lead one to conclude that the death of the deceased was either homicidal or murder. For that purpose, it is the evidence of the doctor who conducted the autopsy is required to be considered. 32. The said evidence of PW-5 and PW-14 also does not lead one to conclude that the death of the deceased was either homicidal or murder. For that purpose, it is the evidence of the doctor who conducted the autopsy is required to be considered. 32. As observed above, PW-13 Dr.Deepamani S., who conducted autopsy on the deceased, has stated in her evidence that she noticed contusion over anterior neck and scratches of various sizes and shapes on both sides of the neck. She also stated that the dead body had swollen face, eyelids with petechial haemorrages of conjunctive, sclera with finger impression on both sides of neck, which was contused with significant defence scratches over neck. She also noticed fracture of larynx, greater horn of hyoid bone with fracture of thyroid cartilage. She also noticed rupture of neck muscle and finger nail of the dead body scraping containing hair. An irregular abrasion of 2 x 3 cm. was also found over anterior part of neck at sternal area due to compression. Those injuries have not been denied from the accused side. The said doctor apart from stating that as to what she has observed on the dead body, further elaborated the same in her evidence by stating that the fracture of larynx and the rupture of finger nails are possible to be caused when a person throttles the neck of the other. She also stated that the rupture of finger nail and the hairs in the nail portion depict that victim had resisted when she was being throttled. With the said observation, the doctor has opined that deceased was murdered by throttling. The said opinion of the doctor that the death of the deceased was homicidal due to throttling has not been denied in her cross-examination. The said doctor denied a suggestion that the death of Yeshodamma was due to suicide by hanging. Thus, the evidence of PW-1 and PW-2, the inquest panchanama and the injuries found on the dead body and the evidence of the doctor who conducted the autopsy clearly go to establish that the unnatural death of deceased Yeshodamma was homicidal. 33. The next point is whether the said homicidal death of Yeshodamma was a murder and was committed by the accused and accused alone. Admittedly, there are no eye witnesses to the alleged incident. The entire case of the prosecution is based on circumstantial evidence. 33. The next point is whether the said homicidal death of Yeshodamma was a murder and was committed by the accused and accused alone. Admittedly, there are no eye witnesses to the alleged incident. The entire case of the prosecution is based on circumstantial evidence. In that regard, the prosecution has primarily banked upon the last seen theory. It is in that regard, learned High Court Government Pleader in his argument vehemently submitted that the evidence of prosecution witnesses clearly prove beyond reasonable doubt that the accused was living along with the deceased in her house and on the night of the alleged incident, it was the accused who was lastly seen in the company of the deceased. Further, it was once again the accused who exposed the deceased for the first time to the outside by calling Girish, the auto driver, to take her to the doctor and which doctor confirmed that the patient was brought dead. Therefore, based on the last seen theory, it can only be inferred that it was the accused and accused alone who has committed the alleged offence. 34. Per contra, learned counsel for the appellant in his argument submitted that it is not established that the accused was living with the deceased. Further, the evidence of PW-12 goes to show that on the night of the alleged incident, the accused was not sleeping in the house of the deceased, but, he was sleeping in his house. Further, when the accused was not sleeping in the house of the deceased, the question of he lastly being seen in the company of the deceased does not arise. He further submitted that the prosecution case is full of suspicion. Since apart from the accused, admittedly there were the children of the deceased also in the same house and non-suspecting those children or not even recording their statements by the Investigating Officer and examining them as witnesses, creates a serious doubt in the case of the prosecution. He also submitted that non-collection of hairs said to be found in the nails of the deceased suspect the very manner of the investigation conducted in the matter. The alleged recovery of MO-1 is also not established. He also submitted that non-collection of hairs said to be found in the nails of the deceased suspect the very manner of the investigation conducted in the matter. The alleged recovery of MO-1 is also not established. Thus, in view of the serious doubts arising in the case of the prosecution, the benefit of the same is required to be extended to the accused, which the trial Court has not considered. 35. Pws.1, 2, 3, 5, 6, 7, 9, 10, 11, 12, 14 and 16, have uniformly stated that the accused was residing in his aunt's house i.e., the house of deceased, after the death of Ganeshappa, the husband of the deceased. The evidence of these witnesses is not being specifically and categorically denied in their cross-examination. On the other hand, some of the witnesses, including PW-5, who is a relative to both deceased and the accused, have reiterated their statement that the accused was living in the house of the deceased even in their cross-examination also. Both PW-5 and PW-11, apart from stating that accused was living in the house of the deceased, have also stated that, on the night of the alleged incident, since the accused refused to open the door and admit the deceased inside her house, PW-5 Girish, who had to intervene to see that accused opens the door of the house, so that deceased could enter her house. Further, both these witnesses have also stated that after the deceased entering her house on that night, the accused started quarrelling with her. After noticing that both of them were quarrelling, these people left for their home. Thus, the evidence of PW-5 and PW-11 not only proves that the accused was living in the house of deceased, but, also shows that just prior to the incident, it was the accused who was found lastly in the company of the deceased. However, it was only PW-12, who is the sister-in-law of the accused, is the lone witness who has admitted a suggestion in her cross-examination made from the accused side that on the night of the incident, the accused was sleeping in their house. However, it was only PW-12, who is the sister-in-law of the accused, is the lone witness who has admitted a suggestion in her cross-examination made from the accused side that on the night of the incident, the accused was sleeping in their house. However, it is interesting to note that the very same witness in her cross-examination made by the prosecution, after she was treated as hostile, has also admitted a suggestion as true that, after the death of husband of the deceased, the accused was living in her house. Therefore, the evidence of PW-12 who has admitted the contrary suggestion as true and further she being sister-in-law i.e., the wife of the elder brother of the accused, as such, an interested witness also, cannot inspire any confidence to believe. Further, in view of contradictions in her own evidence, it is also not safe to believe her evidence. 36. Barring the evidence of PW-12, all other witnesses, as observed above, since have clearly stated that accused was living in the house of the deceased along with her since two years prior to the incident and the same has not been seriously denied or disputed, it proves beyond reasonable doubt that the accused was living in the house of the deceased. Further, as observed above, the evidence of PW-5 and PW-11, who are admittedly relatives of both the accused and the deceased and also neighbours of the accused and the deceased, would further makes it clear and establishes that on the night of the incident, it was the accused and the children of the deceased who were lastly found in the company of the deceased in her house. This conclusion gets further corroboration through the statement of PW-6 that has been elicited in the form of suggestion to the witness from the accused side in his cross-examination. It was suggested to the witness that on the night of the incident, the accused had been to the house of the deceased only to advise her that being a lady, she should not move around in the night, at that time, she had a quarrel with the accused. After some time, on the same night, once again the accused went to her house and noticed that deceased had committed suicide by hanging. After some time, on the same night, once again the accused went to her house and noticed that deceased had committed suicide by hanging. Even though the witness has not admitted the said suggestion as true, but, by making that suggestion, the accused has once again admitted that, on the night of the incident, it was he who lastly met the deceased and also he was the first person who saw Yashodamma as dead. Thus, the argument of learned counsel for the appellant that prosecution has failed to prove that the accused was living with the deceased in her house and that on the date of the incident, it was the accused who was found lastly in the company of the deceased, is not acceptable. 37. Since it is established that the accused was living along with the deceased, including on the day of the incident and that he was there in the said house along with the deceased just prior to her death, would it conclusively prove that it was the accused alone who has caused the death of Yashodamma. As repeatedly being observed above, the case of the prosecution is purely based on circumstantial evidence. Merely because the accused is proved to have been found residing along with the deceased in her house and merely because just prior to the death of the deceased, the accused was proved to be found in the company of the deceased, by that itself, it cannot be concluded that it was the accused and accused alone who has committed the homicidal death of the deceased. When the case of the prosecution is based on circumstantial evidence and in view of chain of events, every link in that chain has to be clearly established without any gap or doubts arising in the said chain and ultimately should show that it was none else than the accused alone who has committed the alleged guilt. In the said links of the chain in the circumstantial evidence, the first two links that the accused was living in the company of the deceased in her house and that on the night of the incident, accused was found in the house of the deceased, has been established. In the said links of the chain in the circumstantial evidence, the first two links that the accused was living in the company of the deceased in her house and that on the night of the incident, accused was found in the house of the deceased, has been established. But, at the same time, it cannot be ignored of the fact that, apart from the accused, there were two other persons who were also staying in the same house and they were the two children of the deceased. The said fact is not in dispute. Further, it is also not in dispute that among those two children, the first one was daughter, aged about ten years and the second was the son, aged about eight years, is also not in dispute. Thus, the two children are not infants, but, could able to narrate the incident if seen by them. The Investigating Officer should have necessarily recorded the statements of those children in the course of investigation in the matter. Had those children seen the incident of any one, including the accused throttling the neck of the deceased Yashodamma, then, definitely being the children of the deceased would have revealed the same before the Investigating Officer. Otherwise, if they have not seen the incident, they would have stated so before the Investigating Officer. Surprisingly, the Investigating Officer has not recorded the statements of those two children and they have not been arraigned as charge sheet witnesses. Thus, the important witnesses who were available for investigation were not enquired by the Investigating Officer and they were not examined by the prosecution. Considering the age of the children, it cannot be presumed that they were too young to speak anything about the incident. It also cannot be presumed that both the children must have been sleeping at the time of the incident. Considering the age of the children, it cannot be presumed that they were too young to speak anything about the incident. It also cannot be presumed that both the children must have been sleeping at the time of the incident. Those two children neither being infant nor being adolescent, there is all the possibility of they sleeping with their mother in their small house in the village and any one attempting to kill her mother, that too, when their mother is protesting the act of throttling vehemently, which is evident in the form of injury found on her body and also the hairs found in the nails of her fingers, could clearly go to show that the children should have been disturbed in their sleep and should have necessarily woken up and had they seen the accused throttling their mother, they should have really raised voice and cried for help. But, as observed above, no effort has been made by the Investigating Officer to examine those children of the deceased nor even by the prosecution. 38. Interestingly, none of the prosecution witnesses, majority of whom are the relatives of the deceased, also have not whispered anything about the reaction of the children to the incident or they enquiring with the children about the incident. Thus, the non-examination of the children of the deceased who were residing in the same house with their deceased mother on the ill-fated day, introduces a serious doubt and lacuna in the case of the prosecution. Secondly, regarding the place of conducting of post mortem examination, there is a doubt that has crept in the case of the prosecution. According to the panchas to the inquest panchanama, who are PW-1 and PW-2 and also the inquest panchanama at Ex.P-1, the inquest panchanama was done in the house of the deceased at Harosagara village. The said inquest panchanama at Ex.P-1 shows that after the inquest panchanama, the dead body was sent for post mortem examination. PW-22 the Investigating Officer has also stated that after inquest panchanama, he sent the dead body in police escort for its post mortem examination. According to the inquest panchanama, the dead body was sent to Chiradoni Government Hospital for its post mortem examination. From the said evidence, it can be inferred that post mortem examination was done in the Primary Health Centre at Chiradoni. 39. According to the inquest panchanama, the dead body was sent to Chiradoni Government Hospital for its post mortem examination. From the said evidence, it can be inferred that post mortem examination was done in the Primary Health Centre at Chiradoni. 39. On the contrary, the evidence of PW-13 the doctor who conducted autopsy, who is the Medical Officer at Primary Health Centre, Chiradoni, goes to show that, as requested by the police, she herself visited Harosagara village and conducted the post mortem examination between 3.30 to 5.30 p.m. Therefore, a serious doubt arises as to in which place, the post mortem examination is done. When the very place of conducting the post mortem examination itself has not been established by the prosecution, then, the correctness in the alleged post mortem report at Ex.P-12 may also lead to some suspicion. 40. The prosecution case is also that the accused after throttling the deceased, also attempted to hang the body of the deceased with the help of Saree said to be belonging to the deceased. The Investigating Officer i.e., PW-22 claims that the accused in his alleged voluntary statement at Ex.P-17, has stated that he would produce the said Saree provided if he is taken to the house of the deceased. Accordingly, the Investigating Officer and PW-4 and PW-8 followed the accused, who produced the said Saree in the house of the deceased, which the Investigating Officer claims to have seized by drawing a seizure panchanama as per Ex.P-3. The Investigating Officer has identified the said Saree at MO-1. PW-4 in his evidence in the opening statement itself has stated that the police had taken him to Harosagara village along with PW-8 to the house of Yashodamma, where the accused was present and he produced a Saree stating that it was with the said Saree, he hanged deceased Yashodamma. The witness has identified the said panchanama at Ex.P-3 and has identified the Saree at MO-1. However, what is to be noticed in his evidence is that, no where the witness has stated that it was the accused who led the panchas and police to the house of the deceased. On the contrary, according to this witness, it was the police who took him and PW-8 to the house of the deceased, at which point of time, accused was already present in the house of the deceased. On the contrary, according to this witness, it was the police who took him and PW-8 to the house of the deceased, at which point of time, accused was already present in the house of the deceased. Therefore, the argument of the learned High Court Government Pleader that MO-1 was recovered at the instance of the accused, who led the police and panchas where he had hidden it, is not acceptable. Even PW-8 also has not stated that accused led them to the house of the deceased. On the other hand, he has only stated that on the said day, the police had been to the house of the deceased and the accused was with them. However, he has not stated as to how come he was present there at that time. Secondly, PW-4 in his evidence has stated that accused produced the said Saree stating that it is using the said Saree, he hanged Yashodamma by tying the Saree around her neck. This is not at all the case of the prosecution. On the contrary, the case of the prosecution is that accused killed the deceased by throttling her and then attempted to hang her with the help of Saree at MO-1. The evidence of PW-4 is not in consonance with the case of the prosecution, but, it speaks different about how the Saree was produced before them. Thirdly, PW-8 no where in his evidence has stated as to who produced the said Saree. Interestingly, the said Saree was not shown to PW-8 for getting it identified. Therefore, the evidence of PW-8 would not help the case of the prosecution, but, evidence of PW-4 gives a different picture than what the prosecution case is with respect to Saree at MO-1. Lastly, the said Saree was not got identified by any of the family members of the deceased to establish that it was the Saree belonging to the deceased. As such, the case of the prosecution with respect to seizure of the Saree at MO-1 and its alleged use in the commission of the crime also could not be established by the prosecution. 41. The last serious doubt that has crept in the case of the prosecution is with respect to the Investigating Officer not collecting and sending the hairs that were said to be found in the nails of the deceased and noticed by the doctor who conducted autopsy. 41. The last serious doubt that has crept in the case of the prosecution is with respect to the Investigating Officer not collecting and sending the hairs that were said to be found in the nails of the deceased and noticed by the doctor who conducted autopsy. PW-13, the doctor who conducted the post mortem examination on the dead body of Yashodamma has clearly stated that she noticed the rupture of finger nail and in the nails of the deceased, she noticed hairs. The doctor has given her explanation in her evidence stating that the said symptom of rupture of nails and catching of hairs in the nails of the fingers of the hands of the deceased would show that the deceased had shown her resistance at the time of she being throttled by the culprit. If that were to be the feature, when the dead body was found with those hairs said to be found in the nails of the fingers of the deceased the same would have played a very important role in identifying the culprit. The hairs of the culprit which were caught by the deceased herself would be acted as one of the most important evidence, that too, left by the deceased herself. The Investigating Officer has not collected those hairs from the doctor. PW-13 has stated that since the fingers of the deceased were swollen, she could not collect those hairs which were accumulated in the nails of the fingers of the deceased. The said reasoning given by the doctor appears to be not convincing, for the simple reason that, it is nobody's case that the hairs were embedded in the body of the deceased or that it was not traceable. When those hairs were clearly visible and were not embedded inside the body and the said body being a dead body of a person, the doctor could have easily collected them by using the suitable instrument like forceps etc., In that process, the doctor could have removed the skin of the portion of the fingers to enable collecting the hairs which could have acted as very important evidence. In that process, the Investigating Officer, who by then had already drawn inquest panchanama and examined the dead body, should have requested the doctor i.e., PW-13 not to destroy that important piece of evidence or not to fail from collecting the said important material of evidence. In that process, the Investigating Officer, who by then had already drawn inquest panchanama and examined the dead body, should have requested the doctor i.e., PW-13 not to destroy that important piece of evidence or not to fail from collecting the said important material of evidence. For the reasons best known to him, the Investigating Officer has let an important piece of evidence uncollected. This further aggravates the doubt in the case of the prosecution. 42. According to the prosecution, the motive behind the alleged commission of crime by the accused is he suspecting the character and fidelity of the deceased with whom he is said to have established an illicit relationship. In that regard, the prosecution has relied upon PWs.5, 6, 7, 9 and 10. As observed above, PW-5 has only stated that accused was in cordial terms with the deceased. He has not stated that they had any illicit relationship. PW-6 though has stated that accused had developed illicit relationship with the deceased and was assaulting her, but, he has not stated as to the basis for his belief. A mere statement that accused had developed illicit relationship without there being any reason to believe, the said statement is not sufficient to believe. Similarly, the evidence of PW-7 is only a hearsay evidence, who says that the neighbours of the deceased were telling that the accused had illicit relationship with the deceased. Therefore, the said hearsay evidence is also not safe to believe. PW-9 is a third person and an autorickshaw driver with his residence in a different place than where the deceased was residing. Though this witness has stated in his examination-in-chief that there was illicit relationship between the accused and the deceased, but, the very same witness in his cross-examination has admitted a suggestion as true that the relationship between the deceased and the accused was that of a aunt and son. Thus, his contrary statement and more importantly, there being no evidence as to on what basis he would say that there was any illicit relationship, his stray statement about the alleged illicit relations of the accused with the deceased cannot be believed. PW-3, the mother of the deceased, was the best witness who could speak about the alleged illicit relationship between the accused and the deceased. PW-3, the mother of the deceased, was the best witness who could speak about the alleged illicit relationship between the accused and the deceased. However, the said witness in her examination-in-chief itself has stated that the relationship of her daughter Yashodamma with the accused was like mother and son. Therefore, the prosecution has utterly failed to establish the alleged illicit relationship between the accused and the deceased and that the accused was suspecting the character and fidelity of his aunt i.e., the deceased and it is for the said reason, he committed the murder of the deceased. 43. As observed above, the entire case of the prosecution is based on circumstantial evidence. The Hon'ble Apex Court in Kanhaiya Lal vs- State of Rajasthan, (2014) 4 SCC 715 , was pleased to observe with respect to a case involving circumstantial evidence and last seen together theory that "the circumstances of last seen together does not by itself necessarily lead to inference that it was accused who committed the crime. There must be something more establishing connection between accused and crime, that points to guilt of accused and none else." It was further observed by Hon'ble Apex Court that "Where a case rests squarely on circumstantial evidence, reiterated, inference of guilt can be justified only when all incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person. Circumstances from which an inference as to guilt of accused is drawn have to be proved beyond reasonable doubt." In the case on hand, as observed above, merely because the accused is said to have residing with the deceased and said to have found lastly in the company of the deceased (however, children of the deceased were also there), by that itself, it cannot be held that it was the accused and accused alone who has committed the murder of the deceased. 44. As observed above, several doubts that have arisen in the case of the prosecution about the presence of children of the deceased in the same house at the time of alleged incident, place of conducting autopsy, disparity in the evidence with respect to Saree at MO-1 and non-collecting and sending the hairs said to be found in the finger nails of the deceased and subjecting it for scientific examination, have all introduced several serious doubts in the case of the prosecution. However, the trial Court without appreciating the evidence on these points in its proper perspective, has carried away by the evidence that accused was living with the deceased and on the night of alleged incident, since accused was in the house of the deceased, and held that it was the accused alone who has committed the murder of the deceased. Since the said finding of the trial Court now proved to be an erroneous finding, the same deserves to be set aside and the accused is entitled for the benefit of doubt. 45. Accordingly, we proceed to pass the following order: ORDER The Appeal is allowed. The judgment of conviction dated 24.07.2015 and order on sentence dated 29.07.2015, passed by the learned II Addl.District & Sessions Judge, Davanagere, in S.C.No.150/2013, is hereby set aside. The appellant/accused - Manja @ Manjunath S., S/o A.K.Shivappa, resident of Harosagara Village, Channagiri Taluk, Davanagere District 577 213, is acquitted of the offence punishable under Section 302 of IPC. The fine amount, paid if any, by the accused by virtue of the impugned judgment be refunded to him. The accused be released from the jail forthwith, provided the accused is not required to be continued in custody in any other case/s. Registry to communicate the operative portion of this order to the concerned Jail authorities immediately. The Registry is directed to transmit a copy of this judgment along with lower Court records to the trial Court without delay.